A Spanner in the Work(place): Workplace Bullying and the Fair Work Act

Manifestations of workplace bullying and discrimination in the 21st century have continued to take many forms. In 2015, we saw the inherent strains of racial discrimination in Australia’s culture in the booing of AFL player Adam Goodes, and our commitment to tackling sexual discrimination halted with the vacant position of Sex Discrimination Commissioner for the past four months.

Legislative Background for Workplace Bullying

Despite the Amendments to the Fair Work Act (‘the Act’) that came into effect on 1 January 2014, power imbalances and intimidation are still ripe in contemporary workplace culture. These amendments have attempted to reshape the culture of bullying in the workplace, by defining bullying as a repeated unreasonable action that creates a risk to health and safety.

Shortly after the new legislation was enacted, the case of Ms SB [2014] FWC 2104 appeared before the courts. The case examined the effects of the amendments to the Act. A point of interest was the use of the word ‘repeated’ in the legislation. However, the case construed repeated to mean more than once, but not necessarily multiple times. Another key theme Commissioner Hampton, Head of the Fair Work Commission’s anti-bullying panel, unpacked was the concept of reasonable management action under s789FD(2) of the Act. In light of this case, companies should review their bullying guidelines, policies, and procedures, and create a transparent investigation into any concerns raised. Commissioner Hampton also stressed that bullying doesn’t stop after the issue is resolved. However, it should be an ongoing process to maintain good relations between employees. After all, if bullying is negatively affecting an employee, it is likely causing the business detriment.

Impacts of bullying on a business can have negative implications for the business’ brand name, goodwill, reputation, and productivity. How employers respond to complaints is crucial as employers have a duty of care in Australia. In Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64. the bullying complaints made by an employee were not taken seriously and, as a result, compensation claims arose. This case demonstrates that having an anti-bullying policy is not enough, there is a duty of care owed by the employer to deal with a complaint appropriately.

In distinguishing from the above cases, Koehler v Cerebos (Aust) Ltd [2005] HCA 15 (Unreported, McHugh, Gummow, Hayne, Callinan and Heydon JJ, 6 April 2005) provides an example of when an employee fails to establish that the employer breached their duty of care. As a result, the High Court concluded that it was not reasonably foreseeable that the employer would have seen the risk that led to the employee’s psychiatric illness.

Climbing the Corporate Ladder

Up for discussion is the fact that the High Court in Koehler explained an employee on accepting a position undertakes that they can do the job. If the law assumes that employees can do this, is it fair to assume that some tasks incur very high workloads and stress levels? This point directly relates to the culture in traditional law firms and large corporations where employees typically climb the ladder in a hierarchical structure. Does personal animosity become an accepted norm of such corporate culture?

In 2012, the House of Representatives Standing Committee on Education and Employment conducted an Inquiry into Workspace Bullying and tabled its report Workplace Bullying: We Just Want It to Stop (‘the Report’). The Report suggested multiple avenues for targeting workplace bullying such as a national accreditation, a Commonwealth run investigation service and a mediation service for workplaces. While these detailed suggestions were only noted by the Fair Work Commission, from the 1 January 2014, workers who reasonably believe they have been bullied can apply to the Fair Work Commission for an order to stop the bullying. Courts have been given the power to remedy any contravention of such an order which can be accompanied by penalties for individuals and corporations. These changes also come with a focus on management and the avoidance of conflict through consultation and cooperation.

Future of Bullying in the Workplace

While the Fair Work Act and Commission attempt to impose obligations on employers and employees to strengthen the culture within the workforce, the growing use of social media presents many future challenges to employment relations. With the use of social media becoming even more apparent in daily life, the boundaries between private and public are blurred. Are online platforms such as Facebook, Twitter, and Instagram public or private domains? Should employers be able to impose obligations on employees regarding social media use? These are questions that will be shaping the agenda of future law reform in employment law. It is important that employees are doing all they can to enhance employee relations and, therefore, foster productive and positive workplace relations.

Lachlan is the CEO of LegalVision, an innovative and tech-driven law firm. LegalVision is disrupting Australia's legal industry and transforming the way in which Australian businesses access legal services. He previously worked as a corporate lawyer and investment banker in London, Paris, Amsterdam and Hong Kong. Lachlan specialises in banking and finance, capital raising and startups.

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